R. v. Blysniuk, 2020 ONCJ 603

ONTARIO COURT OF JUSTICE CITATION: R. v. Blysniuk , 2020 ONCJ 603 DATE: October 18, 2020 COURT FILE No.: 19-0015 BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — STEPHEN BLYSNIUK Applicant Before Justice Leszczynski Heard on October 5, 2020 and October 6, 2020 Reasons for Judgment released on December 18, 2020 Mr. Michael Michaud......................................................................... counsel for the Crown Mr.

Nick Cake............................................................. for the Applicant, Stephen Blysniuk Leszczynski J.: [ 1 ] The Applicant was charged on December 22, 2018 with the offence of operating a conveyance with a blood alcohol concentration that was equal to or in excess of 80 mg of alcohol in 100 ml of blood contrary to s. 320.14(1) (

b) of the Criminal Code . [ 2 ] The subject matter of this decision is the constitutionality of s. 320.27(2) of the Criminal Code , which permits a police officer to make a demand of a driver of a motor vehicle to provide a sample of his breath into an approved screening device in the absence of any suspicion that the driver has alcohol in their body if certain statutory conditions are met. HISTORY OF PROCEEDINGS [ 3 ] The trial of this matter commenced on November 13, 2019. At that time, the Crown and Applicant tendered an Agreed Statement of Facts.

The Applicant had also filed a Charter Application seeking the exclusion of the breath test results from the approved instrument, alleging that Constable Wagar had violated his s. 8 Charter rights by failing to have grounds to suspect that he had alcohol in his body as required by s. 320.27(1) of the Criminal Code . The reality is that Constable Wagar did not make the demand pursuant to s. 320.27(1) , but rather explicitly did so pursuant to s. 320.27(2) .

I rendered my decision on that issue on November 26, 2019 finding that Officer Wagar did not have a reasonable suspicion that the Applicant had alcohol in his body when he made the ASD demand, as is required by a demand made pursuant to s. 320.27(1) , and that if he had made the demand pursuant to s. 320.27(1) , I would exclude the results pursuant to s. 24(2) of the Charter. [ 4 ] The Applicant also brought a constitutional challenge seeking to have s. 320.27(2) declared to be of no force and effect as an infringement of his s. 8, s. 9 and s. 10(

b) Charter rights. The parties sought to adjourn the constitutional challenge to March 25, 2020 in

order to prepare the requisite evidence and factums, however, as a result of the Covid-19 pandemic this was adjourned and ultimately notheard until October 5, 2020. It is important to note that while the Applicant’s Notice of Constitutional Challenge sought to have s.320.27(2) be declared unconstitutional and of no force and effect, the Applicant conceded during his submissions that this remedy is ultravires the power of this Court and that pursuant to the holding in R. v.

Lloyd, 2016 SCC 13 , [2016] 1 S.C.R. 130 at para. 15-17,this Court’s jurisdiction is restricted only to a determination of whether s. 320.27(2) does or does not apply to the Applicant in this case. [5] This is my decision on that Application. 2. THE FACTS OF THE CASE [6] The facts of this case are very simple. Constable Wagar of the Ontario Provincial Police, stopped the Applicant’s vehicle onDecember 22, 2018 at 7:22 p.m. on Front Street in the Village of Point Edward to check on his peeled rear licence plate. The officerinformed the Applicant of the reason for the stop.

Subsequently, Constable Wagar also advised the Applicant that it was a “Festive Rideand based on it being a Saturday night all drivers he would be stopping were being read a breath demand under s. 320.27(2) of theCriminal Code of Canada.” The Applicant denied consuming any alcohol and the officer made a demand that he provide a sample intoan approved screening device (“ASD”) pursuant to s. 320.27(2) at 7:26 p.m., which he had in his police cruiser.

The Applicant provideda suitable sample of his breath into the approved screening device resulting in a Fail, thereby giving the officer reasonable and probablegrounds to believe that he had committed the offence of operating a conveyance with a blood alcohol concentration of 80 mg of alcoholin 100 ml of blood or more. The Applicant was then arrested at 7:28 p.m., read his rights to counsel and transported to the Petrolia OPPdetachment, where he provided two samples of his breath into an approved instrument registering readings of 140 mg of alcohol in 100ml of blood and 130 mg of alcohol in 100 ml of blood. 3.

THE LAW AT ISSUE: s. 320.27(2) C.C.C. [7] Prior to December 18, 2018, an approved screening device demand could be made pursuant to s. 254(2) of the Criminal Code ifthe officer had a reasonable suspicion that the driver of a motor vehicle had alcohol in their body.

The threshold to establish a“reasonable suspicion” was relatively low and could be met in various ways, including but not limited to an admission by the driver thathe had consumed alcohol or a constellation of factors including poor driving conduct, glossy/glassy eyes, slurred speech, poor motorcoordination or the smell of an odour of alcohol on the driver’s breath. [8] Bill C-46, which repealed and replaced all sections of the Criminal Code related to driving offences came into effect onDecember 18, 2018, that being 4 days prior to the Applicant’s arrest on the charges before the Court.

Included in Bill C-46 is thereplacement of what was formerly s. 254(2), with now what is s. 320.27 of the Criminal Code. The

section which is at issue in thisproceeding is s. 320.27(2), which has eliminated the need for the officer to have a reasonable suspicion that the driver has alcohol in hisbody prior to making a roadside screening demand. It reads: Mandatory alcohol screening 230.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawfulexercise of powers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require theperson who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessaryto enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose. [9] The statutory prerequisites that must be met before an officer can make a demand pursuant to s. 230.27(2) is that the officermust be acting in the lawful exercise of his powers at the time of the demand, the subject must be operating a motor vehicle, and theofficer must have an approved screening device in his possession at the time of the demand. [10] I am going to begin by first addressing the s. 9 and 10(

b) arguments, as they are the simpler analyses in this particular case. 4.

SECTION 9 – RIGHT AGAINST ARBITRARY DETENTION [11] The Applicant was initially lawfully stopped by Constable Wagar regarding concerns by the officer of his peeling licence plate.The stop was justified under the H.T.A.

There is no suggestion by the Applicant that the initial stop was arbitrary or motivated by animproper purpose. [12] The Applicant’s further detention, however, that resulted from the demand under s. 320.27(2) to check on his sobriety, incircumstances where Constable Wagar did not have any grounds to suspect the Applicant had alcohol in his body nor reasonable andprobable grounds to believe that he had committed an offence is an arbitrary detention for the reasons described in R. v. Hufsky, [1998] 1S.C.R. 621 at para. 16.

In considering s. 1, however, LeDain J. stated at para. 20, In view of the importance of highway safety and the role to be played in relation to it by a random stop authority for the purpose ofincreasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by themere observation of driving, I am of the opinion that the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to bearbitrarily detained guaranteed by s. 9 of the Charter is a reasonable one that is demonstrably justified in a free and democratic society.The nature and degree of the intrusion of a random stop for the purposes of the spot check procedure in the present case, rememberingthat the driving of a motor vehicle is a licenced activity subject to [page 637] regulation and control in the interests of safety isproportionate to the purpose to be served. [13] Similarly, following Hufsky, supra, the Supreme Court of Canada in R. v.

Ladouceur, (SCC), [1990] 1 S.C.R.1257 held that completely random stops (authorized by s. 189a(1)) to check on sobriety, for licences, insurance and the mechanicalfitness of cars were inconsistent with s. 9, but were again saved under s.1 as the “random stop is rationally connected and carefullydesigned to achieve safety on the highways and impair as little as possible the rights of the driver. It does not so severely trench onindividual rights. Indeed stopping vehicles is the only way of checking a driver’s licence and insurance, the mechanical fitness of avehicle, and the sobriety of the driver.”

[14] Given that s. 320.27(2) does not create a new stopping or detention power by the police and does not change the existingstopping power, or lengthen the detention period from that which would otherwise have been lawful for the purposes of investigating adriver’s sobriety compared to that which has already been considered in the context of random stops to check on the sobriety of thedriver, I am satisfied that it is settled law that while the detention which flowed from the demand made pursuant to s. 320.27(2) of theCriminal Code was arbitrary and therefore a breach of the Applicant’s s. 9 rights, it is saved by s. 1 for the reasons espoused in Hufsky,supra, and Ladouceur, supra, as well as, those I have discussed in the context of s. 8 and the corresponding s. 1 analysis below. 5.

SECTION 10(b) – RIGHTS TO COUNSEL [15] A person’s s. 10(

b) rights to counsel are triggered upon detention and must be implemented without delay subject to concerns forofficer or public safety and such limitations as prescribed by law and justified under s. 1 of the Charter. The Applicant alleges that s.320.27(2) infringes s. 10(

b) and cannot be justified under s. 1. [16] It is settled law, however, in accordance with R. v. Smith, (ON CA), [1996] O.J. No. 372 (O.C.A.), that theinformational and implementational components of the rights to counsel are suspended during a brief roadside stop to investigate adriver’s sobriety. [17] In R. v. Thomsen, (SCC), [1988] 1 S.C.R. 640 at para. 19, the Supreme Court held that where an officer relies onthe former suspicion-based ASD demand, s. 10(

b) is suspended within the entirety of the forthwith window, as long as it is nor morethan reasonably necessary to allow the police to properly discharge their duties under the section. The delay must be no more than isreasonably necessary to allow the police to properly discharge their duties under the

section (R. v. Quansah, [2012] O.J. No. 7879 atparas. 41-42). [18] Although the Applicant suggests that s. 10(

b) must be re-assessed in the context of s. 320.27(2) because it may result in longerperiods of delay, I must disagree. The procedure under s. 320.27(2) serves to streamline and reduce the length of the detention for thepurposes of investigating the sobriety of a driver, given the elimination of time formerly required for an officer to formulate a suspicionabout whether a driver has alcohol in their body and the fact that the officer must now have an approved screening device in hispossession at the time of the demand. 6.

SECTION 8 AND A REASONABLE EXPECTATION OF PRIVACY [19] While s. 8 of the Charter guarantees that everyone has the right to be secure against unreasonable search and seizure, that doesnot mean that every state-initiated search violates s. 8 of the Charter. Before the protections of s. 8 are engaged, it is first necessary todetermine whether the Applicant has established on a balance of probabilities that they have a subjective and objectively reasonableexpectation of privacy that exists in the item searched or seized, taking into account as Cory J. stated in R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128 at para. 31, “the totality of the circumstances of a particular case.” As Binnie J. stated in R. v. Tessling, 2004SCC 67 , [2004] 3 S.C.R. 432 at para 18, In the result the right to be free from examination by the state is subject to constitutionally permissible limitations. First, “not every formof examination conducted by the government will constitute a ‘search’ for constitutional purposes.

On the contrary, only where thosestate examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in questionconstitute a ‘search’ within the meaning of s. 8”; Evans supra, at para. 22. It is only “[i]f the police activity invades a reasonableexpectation of privacy, [that] the activity is a search”; R. v. Wise, (SCC), [1992] 1 S.C.R. 527 at p. 533.

Second, as thelanguage of s. 8 implies, even those investigations that are “searches are permissible if they are “reasonable.” A search will not offend s.8 if it is authorized by a reasonable law and carried out in a reasonable manner: R. v. Caslake, (SCC), [1998] 1 S.C.R.51 [page 443] R. v.

Collins, (SCC), [1987] 1 S.C.R. 265. [20] The Crown strenuously argued that s. 8 of the Charter is not engaged with respect to mandatory alcohol screening as set out in s.320.27(2) as, in its view, recognizing the full context of the situation, it is not objectively reasonable that a person who chooses tooperate a motor vehicle has any expectation of privacy in the blood alcohol concentration of their breath as analyzed by an approvedscreening device.

The Crown suggests that the driver of a motor vehicle has no more privacy in a sample of their breath as analyzed by ascreening device than it does in the odour of alcohol that can be smelled by an officer during a routine stop. [21] In Tessling, supra, Binnie J. reviewed a number of privacy interests protected by s. 8 of the Charter, including personal privacy,territorial privacy and informational privacy, recognizing that these privacy interests may overlap.

When discussing informationalprivacy, he defined it at para. 23 as, “the claim of individuals, groups, or institutions to determine for themselves when, how, and to whatextent information about them is communicated to others.”: A. F. Westin, Privacy [page 445] and Freedom (1970), at p. 7.” He alsostated at para. 21 that “privacy of the person perhaps has the strongest claim to constitutional shelter because it protects bodily integrity,and in particular the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal.” This is consistentwith La Forest J.’s comments in R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417 at para. 27 where he stated, “the use of aperson’s body without his consent to obtain information about [page 432] him, invades an area of personal privacy essential to themaintenance of his human dignity.” In the circumstances of this case, the privacy interests that are engaged are personal, given that thesearch required that the Applicant to provide a sample of his breath for analysis, as well as, informational, given that the results of theroadside screening device reveals information about his blood alcohol concentration. [22] In determining whether an objectively reasonable expectation of privacy exists, the Courts have described various considerationsdepending on the privacy interest engaged and the circumstances.

In R. v. Plant, (1993), (SCC), 3 S.C.R. 281 at para.20, Sopinka J. stated that “… s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in afree and democratic society would wish to maintain and control from dissemination to the state.

This would include information whichtends to reveal intimate details of the lifestyle and personal choices of the individual.” [23] In Tessling, supra, the Supreme Court was considering, in part, the nature and extent of the territorial and informational privacyinterests that may have existed in circumstances where the RCMP used an airplane equipped with Forward Looking Infra-Red (“FLIR”)cameras to record images of thermal energy radiating from a building on the accused’s properties. At para. 32, Binnie J. set out a

number of factors to be considered when determining whether an expectation of privacy is objectively reasonable in that particularcontext, which included:

(1) The place where the alleged search occurred;

(2) Whether the subject matter was in public view;

(3) Whether the subject matter had been abandoned;

(4) Whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?

(5) Whether the police technique was intrusive to the privacy interest;

(6) Whether the use of surveillance technology was itself objectively unreasonable;

(7) Whether the FLIR heat profile exposed any intimate details of the respondent’s lifestyle, or information of a biographical nature. [24] In this case, the search occurred in the context of the Applicant operating a motor vehicle on a public roadway. The sample wasprovided at the roadside. [25] Driving a motor vehicle is not a right in this country, but rather it is a privilege. Driving is inherently dangerous and therefore aheavily regulated activity, subject to considerable restrictions and limitations, in large part designed to address legitimate public safetyissues.

This includes strict parameters regarding the licencing of individuals, the requirement for insurance, fitness guidelines forvehicles, seatbelt laws, the conduct of driving, including speed limits and many other rules of the road. This extensive regulatoryframework reduces the reasonable expectation of privacy one would have while engaged in this activity. This is borne out by thejurisprudence where it has long been recognized that drivers of motor vehicles have a markedly reduced expectation of privacy, includingwith respect to the verification of their sobriety and roadside sobriety tests.

As Justice L’Heureux-Dube stated in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at paras. 100 -101: I believe that this activity is one in which the reasonable expectation of privacy is lower due both to the nature of the activity and to thenature of the means available to regulate it. ALERT tests, spot checks and other such measures all regulate conduct arising in theparticular context of driving and with the particular goal of curtailing a particular subset of that activity – impaired driving.

Whenindividuals obtain a driver’s licence, they accept the many responsibilities that come with that privilege and, most importantly, undertakea responsibility to others to conduct themselves safely on the nation’s roadways. It is common knowledge, moreover, that impaireddriving is dangerous and that the state must take certain measures to curb this pressing problem. People who decide to drink and drive doso either in conscious disregard for, or wilful acceptance of the risks which that activity entails.

Any reasonable expectation of privacywhich they may entertain while in their vehicle is therefore lower with respect to assessments of their sobriety than with respect to mostother activities that do not raise similar considerations. Of course, it is fair to say that once police embark upon investigative action whichno longer relates to the regulation of potentially dangerous driving activity, then the rationale above may no longer apply: see, e.g., R. v.Mellenthin, (SCC), [1992] 3 S.C.R. 615.

I am therefore not altogether convinced that the values underlying s. 8 of the Charter require that this Court interpret the “reasonable andprobable grounds” standard in the context of the interaction of ss. 254(2) and (3) in the same manner as might otherwise be required inmost contexts. In my view, motorists have a lesser reasonable expectation of privacy with respect to verification of their sobriety thanthey do with respect to other, unrelated offences. This expectation is a function of both the nature of the activity engaged in and the threatthat roadside sobriety tests are intended to address. [26]

Section 48 of the Highway Traffic Act, R.S.O. 1990 c H.8 (H.T.A.) enables officers, acting in the lawful exercise of their duties,to stop drivers for the purpose of determining their sobriety, without the necessity of first establishing any grounds or suspicions. Courtshave approved of various techniques by officers to determine the sobriety of drivers, which include asking the driver about their alcoholconsumption, asking the driver to blow in their face, or asking the driver to step out of the vehicle to isolate the driver from otherpassengers.

What distinguishes these examples from the demand power in s. 320.27(2), however, is that such requests are not demandsnor is compliance compellable by the state, the refusal of which does not come with any penal consequences. [27] In the context of roadside screening, however, the breath sample provided by a driver into a roadside screening device, is not onethat can be said to have been abandoned by the driver or is otherwise subject to public observation, for example like the odour of alcoholcoming from one’s breath. Dr.

Mayers, who was qualified as an expert in the areas of toxicology, including the absorption, eliminationand distribution of alcohol in the body, the effects of alcohol on the body, including the effects of impairment, intoxication and the one’sability to operate a motor vehicle, and the approval, use, operation, accuracy and reliability of approved screening devices, testified theprovision of a breath sample into an approved screening device, is one that requires an intentional effort by the driver to produce asample of deep lung air by providing a moderate exhalation directly into an approved screening device for analysis.

This is not a passiveprocess and it requires active participation by the subject. [28] Having said that, it has been long-held and well-established in the jurisprudence since R. v.

Stillman, (SCC),[1997] 1 S.C.R. 607 where Cory J. stated at para. 90, “…, the Criminal Code provisions pertaining to breath samples are both minimallyintrusive and essential to control the tragic chaos caused by drinking and driving.” Further, it is clear in the Criminal Code that thepurposes for which the results of the approved screening device can be used are for the sole purpose providing the officer with groundsto make a breath demand into an approved instrument and not to establish guilt. [29] While I agree with the Crown’s submission, supported by the evidence of Dr.

Mayers, that a roadside screening result does notanalyze any core biographical data, other than the range of an individual’s blood alcohol concentration, the range of an individual’sblood alcohol concentration does reveal personal information about one’s lifestyle and personal choices. For example, in circumstanceswhere an officer did not observe any indicia of alcohol consumption, but the driver provides a test result in the WARN range (50 mg ofalcohol in 100 ml of blood or less) where there is no evidence of impairment and no charges are laid, the result does reveal personal

information about the individual’s choice to consume alcohol, even if it is a low or moderate amount. Taking it a step further, dependingon the time of day in which the test is conducted, it may also reveal additional information about the nature of one’s consumptionchoices.

For example, if someone is tested at 10:00 a.m. and this results in a reading in the WARN range, this reveals informationpotentially about their lifestyle and personal choices surrounding their alcohol consumption decisions that they may wish to control fromdissemination to the state, that may not necessarily impact on their ability to drive at the time of the test and does not result in criminalcharges. [30] The Applicant argued that the comments by Karakatsanis J. in R. v.

Goodwin, 2015 SCC 46 , [2015] 3 S.C.R. 250 werebinding on this Court with respect to finding that a reasonable expectation of privacy exists in roadside screening test results, however,the Crown argued to the contrary, suggesting that it was not binding because the parties in that case conceded the point and the issue wasnot the subject of a fulsome analysis. I disagree with the Crown’s position in this regard. Not only is this case both instructive andpersuasive, in my view, it is also binding on this Court.

The comments of Karakatsanis J. on this central issue, in my view, went beyondjust the mere acceptance of the parties’ concession. Karakatsanis J. considered the merits of the concession when she explained at para.51 that the parties’ joint position was supported by the jurisprudence, explaining that “the factors identified by this Court as “helpfulmarkers” in Tessling, supra, at paras. 43-62, support this conclusion. The seizure occurs in a vehicle (R. v. Grant, 2009 SCC 32, [2009] 2S.C.R. 353 at para 11 and 113); in the highly regulated context of driving on a public highway (R. v.

McKinlay Transport Ltd., (SCC), [1990] 1 S.C.R. 627, at pp. 647-48); and is relatively non-intrusive (Grant, at para 111). While these factors support adiminished expectation of privacy, they do not eliminate any residual privacy interest in one’s breath. Thus, the demand to breathe into aroadside screening device constitutes a seizure that infringes on an individual’s reasonable expectation of privacy.

The protection of s. 8is engaged.” [31] In conclusion, I find that a reasonable expectation of privacy does exist by a driver, in the blood alcohol concentration of theirbreath as taken and analyzed by an approved screening device, albeit this is only a minimal and residual privacy interest for the reasons Ihave already referred to.

This residual privacy interest derives from the fact that in order to provide a sample, the driver must activelyparticipate in a process where he provides a bodily sample for analysis, which may reveal, in some circumstances, personal informationabout their alcohol choices and possibly about their consumption patterns, which does not necessarily impact on their ability to operate amotor vehicle or result in criminal charges. As such, the protections of s. 8 of the Charter to be secure against unreasonable search andseizure are engaged. 7.

WAS THE SEARCH AND SEIZURE PURSUANT TO S. 320.27(2) UNREASONABLE, THEREBY BREACHING THEAPPLICANT’S S. 8 RIGHTS? [32] The Court must now determine if the search and seizure was a breach of the Applicant’s s. 8 rights or if the law is reasonable.The test for reasonableness is set out in R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at para. 23, which states that a searchis reasonable if: 1.) it is authorized by law; 2.) the law is reasonable; and 3.) the search was carried out in a reasonable manner. A.

Was the Search and Seizure Authorized by Law? [33] It is clear that the first prong of this test is easily met in the circumstances of this case. Constable Wagar made the mandatoryalcohol screening demand to the Applicant explicitly pursuant to s. 320.27(2) of the Criminal Code, which had been enacted and whichhad come into force and effect 4 days prior to the date of the stop.

The officer had complied with the statutory preconditions, such thatthe Applicant was operating a motor vehicle at the time, Constable Wagar was acting in the lawful exercise of his duties at the time thestop was made and he had an approved screening device in his possession at the time of the demand. The fact that the search and seizurewas authorized by law favours its reasonableness. B. Is s. 320.27(2) a Reasonable Law? [34] In considering who has the onus to establish whether the law itself is reasonable, I have concluded it is the Applicant.

In doingso, I begin by recognizing that searches and seizures conducted without a warrant are presumptively unreasonable, absent exigentcircumstances, and the burden of establishing reasonableness rests with the state. However, obtaining a warrant would have beenimpractical and incompatible with the intent of roadside testing and its aim at ensuring such testing is done expediently, qualifying it isan appropriate exception to the scope of Hunter et al. v. Southam Inc., (SCC), [1984] 2 S.C.R. 145.

In addition, thesearch and seizure was conducted pursuant to a lawful statutory provision, which are presumed to be in enacted in accordance with theCharter and thus are presumed to be valid unless this presumption is rebutted by the Applicant (R. v. Ahmad 2011 SCC 6 ,[2011], 1 S.C.R. 110 at para. 24).

I accept the Crown’s argument that if a law is presumed to be constitutionally valid it logically flowsthat it is presumed to be reasonable, and that presumption can be rebutted by the Applicant. [35] Determining whether the law authorizing a search and seizure is reasonable requires, as Dickson J. wrote in Hunter, supra, ananalysis as to “whether in a particular situation the public’s interest in being left alone by government must give way to the government’sinterest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.” As Karakatsanis J.stated in Goodwin, supra, at para 55: The protection of s. 8 provides for an individual’s privacy – personal, territorial and informational – is essential not only to humandignity, but also to the functioning of our democratic society.

At the same time, s. 8 permits reasonable searches and seizures inrecognition that the state’s legitimate interest in advancing its goals or enforcing its laws will sometimes require a degree of intrusioninto the private sphere.

The tension articulated in Hunter between the competing individual and state interest, and the adequacy of thesafeguards provided, remain foundational to this analysis.” The Supreme Court has favoured a flexible approach, with Karakatsanis J. identifying in Goodwin, supra, at para. 57, a number ofrelevant considerations, including the nature and purpose of the legislative scheme, the mechanism employed and the degree of itspotential intrusiveness and the availability of judicial supervision. I have considered each of these below. i. Purpose of the Scheme in s. 320.27(2)

[36] The significant threat posed to the lives, health and safety of Canadians by impaired drivers is well-documented, is a frequent andrecurring theme throughout the relevant jurisprudence and cannot be underscored enough. A few examples of such judicial commentaryhighlighting this point throughout the decades are set out below: “It is trite to say that every drinking driver is a potential killer.” (R. v. McVeigh, (ON CA), [1985] O.J. No. 207). “Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction.

From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalizations,drunk driving is clearly the crime which causes the most significant social loss to the country.” (R. v. Bernshaw, supra, at para. 16.) In R. v. Smith, (ON CA), [1996] O.J. No. 372 at para. 12, Doherty J.A. stated, “The tension between individual rightsand broader social concerns is nowhere more apparent than in legislative attempts to deal with the carnage caused by those who commitoffences involving drinking and driving.

Protecting those who use the public roadways from the menace posed by drinking and driving isa pressing and substantial concern.” In R. v. Orbanski 2005 SCC 64 , [2005] S.C.J. No. 35 at para 55, Charron J. stated, “There is no question that reducing thecarnage caused by impaired driving continues to be a compelling and worthwhile government objective.” In R. v. Ramage, 2010 ONCA 488 , [2010] O.J.

No. 2970, Doherty J.A. stated at para. 76, “The danger created by theappellant’s conduct is not unlike that created by a drunken man who walks down a busy street firing a handgun at random.” Justice Karakatsanis stated at para. 1 in Goodwin, supra, “The devastating consequences of impaired driving reverberate throughoutCanadian society. Impaired driving renders roads unsafe, destroys lives, and imposes costs throughout the health care system.” [37] It is clear from the

Preamble to Bill C-46 and s. 320.12 of the Criminal Code that the legislative objective or purpose in enactingmandatory alcohol screening as set out in s. 320.27(2) is to detect and deter motorists with an elevated blood alcohol concentration fromoperating a motor vehicle, for the purpose of keeping Canadian roadways and their users safe from the tragic consequences of drinkingand driving. [38] The

Preamble of

Chapter 21 (assented to on June 21st of 2018) states in part: Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year; Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances; Whereas it is important to deter persons from driving while impaired by alcohol or drugs; Where it is important that law enforcement officers be better equipped to detect instances of alcohol-impaired or drug-impaired drivingand exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms; ...

Whereas it is important that Federal and provincial laws work together to promote the safe operation of motor vehicles; And whereas the Parliament of Canada is committed to adopting a precautionary approach in relation to driving and the consumption ofdrugs, and to deterring the commission of offences relating to the operation of conveyances, particularly dangerous driving and impaireddriving. [39] The objectives of detection and deterrence have now been codified in

section 320.12 of the Criminal Code, which states, in part: It is recognized and declared that (

a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, theobservance of rules and sobriety; (

b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operatethem is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians;” [40] I appreciate the Applicant’s position that statistics in the overall effectiveness of mandatory alcohol screening in other countriescould and likely are subject to variables that may not necessarily apply to those in Canada, such as differences in the mandatory alcoholscreening law itself, its application, and values that may differ from those in our Charter.

For those reasons, I have not relied on suchstatistics in any of my findings. [41] The Crown called Dr.

Beirness, who was qualified as an expert in the areas of the nature and extent of impaired driving inCanada, including a historical overview, the purpose of police screening of drivers for sobriety, the shift from suspicion-based alcoholscreening to mandatory alcohol screening and how that may impact on an officer’s ability to detect impaired drivers, including anexplanation as to how effective the police are at detecting alcohol-impaired drivers at the roadside using methods other than mandatoryalcohol screening, the role of deterrence in affecting the sobriety of drivers including the role that mandatory alcohol screening may havein deterring impaired drivers and drivers of various blood alcohol concentrations, and how mandatory alcohol screening operates in othercountries including statistical data on the impact of road safety in those countries, including the social cost of impaired driving. [42] Dr.

Beirness testified that since the early 1980’s significant efforts have been made to reduce the magnitude of the alcohol crashproblem in Canada, including through public awareness campaigns, designated driver programs, zero tolerance laws for young and newdrivers, new criminal legislation, enhanced provincial administrative programs, ignition interlocks, education/rehabilitation programs for

offenders, and more severe penalties and increased enforcement programs. He stated that although Canada has been successful inreducing alcohol-involved fatalities, the progress has slowed since 1997. Dr. Beirness cited a 2016 report by the U.S. Centres for DiseaseControl and Prevention which indicated that Canada has one of the highest rates of impaired driving fatalities in the world (Sauber-Schatz et al., 2016). He testified that “drivers impaired by alcohol continue to present a high risk to all road users.

In Ontario, the socialcosts associated with the crashes involving drinking drivers are estimated to be approximately $4 billion per year.” I am satisfied basedon the evidence of Dr. Beirness that a reasonable inference can be drawn that while former Canadian laws and efforts to address thisissue have had some positive impact in reducing the problem of drinking and driving in Canadian society, these efforts have beeninadequate to effectively tackle the continuing significant threat still posed to the Canadian public. [43] Dr.

Beirness testified that the purposes of screening the sobriety of drivers are: firstly, to identify people who are driving with anillegal blood alcohol concentration, but secondly, and in his opinion even more importantly, to enhance general deterrence bydemonstrating to drivers that there is a realistic opportunity they will be stopped by police and required to provide a sample of theirbreath into an approved screening device. Dr.

Beirness testified that if “an impaired driver is not detected and allowed to proceed, it canreinforce the person’s belief that they were not impaired or over the legal limit, either of which could serve to increase the likelihood ofthe behaviour recurring.” He acknowledged that while there is not the capacity to detect all impaired drivers, the number of impaireddrivers can be reduced by increasing deterrence. In essence, he testified that central to general deterrence is the certainty of detection, thespeed of sanctions and the severity of those sanctions.

He testified that mandatory alcohol screening enhances general deterrence byincreasing the probability that a driver will be detected and sanctioned, which will increase the impact of other drivers believing they toowill get caught if they engage in such behaviour. [44] The prior legislation related to roadside screening device tests (formerly s. 254(2)), required officers, prior to the making of ascreening demand, to establish a reasonable suspicion that the driver had alcohol in their body.

This suspicion could be achieved at a lowthreshold and in a myriad of ways (e.g. an admission by the driver against their own interest that they had consumed alcohol,observations of poor driving, or a constellation of indicia of alcohol consumption observed by an officer which may include glossy eyes,an odour of alcohol on the driver’s breath), and/or reduced motor skills.

The difficulty with this standard, even though it is a lowstandard, is that in many circumstances a driver who has been stopped specifically to investigate their sobriety may be over the legallimit and/or impaired, without necessarily exhibiting signs of impairment or alcohol consumption, thereby leaving an officer unable toform a reasonable suspicion and therefore without any recourse, but to release the individual to continue to drive. [45] For example, Dr.

Mayers’ evidence established that while an individual intoxicated by alcohol will be impaired in their ability tooperate a motor vehicle, the absence of signs of intoxication cannot be taken as an absence of impairment. In circumstances, where anindividual is impaired by alcohol but does not display indicia of intoxication, this is a function of their tolerance for alcohol. Dr. Mayersstated at para. 8 of his Affidavit that, “Detection of such individuals relies on establishing a BAC which is correlated to impairment.Approved Screening Devices (ASD’

s) can detect these individuals …” [46] Further, Dr. Beirness testified that there is ample evidence to suggest that many drivers who had consumed alcohol would bemissed based purely on suspicion-based testing. In support of this, he referred to a study conducted in North Carolina referred to as theMoskowitz Study (Moskowitz H., Burns, M., & Ferguson, S. (1999). Police Officers’ Detection of Breath Odors from Alcohol Ingestion.Accident Analysis and Prevention, 31, 175-180). This study was peer reviewed and reported.

He testified that this study looked atofficer’s ability to smell the odour of alcohol on an individual’s breath and concluded this ability was heavily dependent on the types ofalcohol or beverages consumed, the amount consumed, the coincident consumption of food and/or other beverages, and the sensorycapability of the officer. To assess officers’ ability to detect alcohol by smell, Moskowitz administered different doses and types ofalcohol to a group of volunteers and then had them blow into a plastic tube inserted through an opaque curtain.

On the other side of thecurtain was one of 20 experienced police officers whose task was to indicate whether or not they could detect the odour of alcohol. Intotal, across 4 test periods there were 120 individual assessments of alcohol odour. Officers were correct in identifying the odour ofalcohol between 55% and 74% of the time when the BAC was 80 mg/dL or less and between 49% and 88% of the time when the BACwas over 80 mg/dL.

The consumption of food about the midpoint of the session had a detrimental effect on the successful identificationof alcohol, suggesting that food odours may have masked or otherwise interfered with the odour of alcohol. Overall, officer estimates ofsubjects’ BAC were deemed no better than chance, even when subjects had a high BAC. Dr.

Beirness concluded that this studydemonstrated that “the odour of alcohol, in and of itself, is not a reliable screening technique for detecting alcohol.” [47] The Applicant criticized the Moskowitz Study on the basis that officers were called upon to detect the odour of alcohol withoutthe benefit of any other observations of the subject, as one would typically expect an officer to have access to during a regular trafficstop. To this point, Dr. Beirness referred to a study by Wells, J.K., Green M.A., Foss, R.D., Ferguson, S.A. & Williams, A.F. (1997).Drinking Drivers Missed at Sobriety Checkpoints.

Journal of Studies on Alcohol, 58, 513-517 (“Wells Study”). This study was peerreviewed, reported and he testified was well-accepted in the field. The Wells Study was conducted by a number of researchers, whoconducted voluntary breath samples downstream from a police checkpoint and determined that the police failed to detect 62% of driverswith a BAC in excess of 80 mg/dL and 87% of drivers with BACs greater than 50 mg/dL but less than 80 mg/dL.

Of note, was thatofficers in the study were also inspecting the driver’s licence, vehicle registration, licence stickers and questioning the drivers aboutfirearms at the checkpoint, thereby providing officers, in his opinion, with a longer window to observe and assess driver behaviour thanmight be the case in a typical alcohol checkpoint conducted in Canada.

He concluded the police were not good at determining whetherdrivers had been drinking. [48] While officers have been given the authority to stop and detain drivers for the sole purpose of checking on their sobriety, thesestudies demonstrate that officers have an inadequate capacity or inability to reliably detect the odour of alcohol on a driver’s breath or toobserve other indicia of the presence of alcohol in the body in a reliable and consistent manner in many circumstances. The SupremeCourt of Canada similarly recognized this in Wilson v.

British Columbia (Superintendent of Motor Vehicles), 2015 SCC 7 , 2015S.C.C. 7 at para. 40: “Evidence also shows that it is extremely difficult to identify drivers who have been drinking by observation alone:Sivia, at para. 100. These are the concerns that the ARP scheme is designed to address. It establishes a common standard for removingdrivers from the road who pose an elevated risk to others. It also serves to deter drunk driving.” [49] The facts in the case of the Applicant also aptly demonstrate this.

The Applicant denied consuming alcohol and Constable Wagarwas unable to detect an odour of alcohol on his breath or observe any other indicia of alcohol consumption or impairment, when in fact

the Applicant had a blood alcohol concentration of 130 mg of alcohol in 100 ml of blood.

The fact that drinking and driving remains theleading cause of criminal death in Canada, notwithstanding decades of legislative attempts to reduce the scourge of impaired driving, isindicative that the former legislation was inadequate in addressing this ongoing threat. [50] Parliament’s intent and objective of enacting mandatory alcohol screening as set out in s. 320.27(2) is to increase the detection ofdrivers with an elevated blood alcohol concentration of 80 mg of alcohol in 100 ml of blood or more and impaired drivers, by increasingthe efficacy of detecting such individuals through the use of a scientifically reliable device, as well as, enhancing the deterrence ofpeople who otherwise may have chosen to take the risk that they would not get caught.

Given the risk, danger and social cost caused bydrinking and driving, and the inadequacy of the results that have been achieved through the various other methods previously utilized inCanada, the objective of increasing the detection and deterrence of such individuals remains a pressing and substantial objective soughtto be achieved through s. 320.27(2) of the Criminal Code. ii. Nature of the Scheme in s. 320.27(2) [51] The Applicant argued that s. 320.27(2) will inevitably capture many innocent people, referencing the comments of KarakatsanisJ. in R. v.

Chehil 2013 SCC 49 , [2013], 3 S.C.R. 220 at para. 51, where she stated “a method of searching that captures aninordinate number of innocent individuals cannot be reasonable, due to the unnecessary infringement of privacy and personal dignity thatan arrest would bring.” Karakatsanis J.’s comments were with respect to the reliability of the search method itself resulting in falsepositives for example. The Applicant has not challenged the reliability of the approved screen device in this case.

Having said that, whileit is true that “innocent drivers” or drivers who have not consumed any alcohol or who are not exhibiting indicia of alcohol consumption,may now be subject to a demand where they might otherwise not have been, the law has already established that such drivers are lawfullythe subject of brief roadside detentions, where their s. 10(

b) rights are suspended, for the purposes of sobriety checks often conductedthrough various screening measures without the necessity of the officer formulating a reasonable suspicion the driver has alcohol in theirbody. This is not new by virtue of the enactment of s. 320.27(2). For example in R. v.

Smith, supra, at para. 28, Doherty J.A. held that asobriety screening procedure made pursuant to s. 48 of the Highway Traffic Act cannot be reasonable “unless it can be performed at thesite of detention, with dispatch, with no danger to the safety of the detainee, and with minimal inconvenience to the detainee.” A breathsample provided pursuant to the requirements in s. 320.27(2) meets the standards of this test, as the approved screening device test is tobe administered quickly, at the scene, with minimal inconvenience to the driver, as it was in the Applicant’s case. [52] Further, it is imperative to keep in mind that the results of an approved screening device can only be used as an investigatory toolthat has the potential to provide an officer with reasonable grounds to believe an offence has been committed.

To be clear, the results of aroadside screening device cannot be used to establish guilt and as Justice L’Heureux-Dube stated in R. v.

Bernshaw, supra, at para. 92,“its results carry no penal consequences.” [53] This is in contrast to that in Goodwin, supra, where the Supreme Court was, in part, considering the constitutionality of theAutomatic Roadside Prohibition under the BC Motor Vehicle Act (“The ARP scheme”), where the approved screening device resultswere used as proof of a regulatory offence, which carried with it significant penalties, including a 90 day driving prohibition, a 30 dayvehicle impoundment and other monetary fees, with limited grounds for judicial review.

Karakatsanis J. recognized this distinction atpara. 62, where she stated, “The ASD test is the sole basis for the penalties and suspension provided for in the ARP scheme. This ismarkedly different from the criminal context, in which the use of approved screening device is only the first

part in the Criminal Code’stwo-step process for investigating drunk-driving offences.” [54] The Applicant argued that mandatory alcohol screening may result in longer delays at the roadside, however, the statutoryrequirements that the officer has an approved screening device in their possession at the time of the demand and that the demand requiresthe driver to immediately provide a sample of their breath, coupled with the elimination of the need to conduct an investigation todetermine whether there is a reasonable suspicion that a driver has alcohol in their body, all serves to reduce delays that may have existedpursuant to the former suspicion-based testing.

Dr. Mayers testified that it takes 2-3 seconds for an ASD to be ready for use once it isturned on and approximately 1.6 seconds for an individual to provide a sample into the device or up to 10 seconds depending on thepressure of their breath, and between 2 seconds and less than one minute for the device to analyze the sample, depending on the amountof alcohol contained in the sample. In this particular case, there was not more than 2 minutes from the time of the demand until theApplicant’s arrest.

It was a very brief roadside detention and not one that I could find resulted in a longer detention than would havebeen expected under the former suspicion-based testing scheme. [55] The Applicant argued that s. 320.27(2) will disproportionately impact on members of racial minorities and increase thelikelihood that racial profiling will occur. This is a valid and serious concern. It is first important to recognize that s. 320.27(2) does notcreate any new stopping power by the police nor does it broaden the police’s existing stopping powers for the purpose of investigatingthe sobriety of the driver.

This law does not increase the likelihood that racialized individuals will be stopped more frequently thanwhich already occurs. Having said that, I acknowledge and appreciate the reality that racialized persons are disproportionately stoppedby police officers and therefore may be disproportionately subjected to a demand pursuant to s. 320.27(2) thereby resulting in thedisproportionate arrest and charging of racialized individuals. This type of conduct by an officer is contrary and repugnant to our notionsof the fair and equal application of the law.

Law enforcement agencies ought to be responsible for ensuring officers receive effectivetraining and supervision in the proper and equal application of s. 320.27(2) to counter both explicit and implicit bias and discriminationin its application to ensure that racialized persons are not subjected to such demands disproportionately to the population at large.

I findthe Crown’s submission that s. 320.27(2) enhances fairness persuasive, given that s. 320.27(2) eliminates the subjectivity, even if it isreasonably held at the time, of an officer’s suspicions based on their personal observations of an individual’s physical appearance,demeanor, motor skills, or communication skills, all of which are vulnerable to misinterpretation, and can be rooted in stereotypes orformulated without an appreciation of an individual’s unique circumstances, including their race/ethnicity, cultural background, and pre-existing developmental, genetic or medical conditions.

Illustrative of this point, is an officer’s subjective observations regarding anindividual’s atypical speech patterns, which easily can be misattributed to the consumption of alcohol, but in fact may be unrelated to theconsumption of alcohol, and rather is caused by a speech impediment, a stutter, the effects of a prior stroke, an accent or the fact thatEnglish is not the person’s first language.

I am not suggesting that such an observation regarding speech in and of itself would satisfy thestandard that the suspicion was reasonable in the circumstances (certainly it would not), but it is an example of a common observationconsidered by an officer in looking for indicia of alcohol consumption and impairment that can be explained by many other causes that

may not be known by an officer at the time, not unlike many other typical indicia, such as the appearance of the eyes, motor co-ordination, comprehension and ability to follow directions. Conclusions based on observations of these types of indicia, even whenreasonably held, could disproportionately impact on racialized individuals.

Section 320.27(2) eliminates this subjective determinationand now permits a demand to be made on the sole objective criteria that the individual is operating a motor vehicle, as long as thestatutory prerequisites are present. While there are legitimate concerns about the consistent and fair application of the law, the law itselfdoes not target racialized persons. I cannot find that this law is unreasonable because it has the potential to be abused by being applied inan improper and unlawful manner.

In fact, in this particular case, Constable Wagar specifically stated to the Applicant that all drivers hestopped that night would be given a demand pursuant to s. 320.27(2) based on it being the holiday season and a Saturday night. Theevidence established that the Applicant was initially stopped as a result of obvious concern about his licence plate. There was noevidence that would suggest that Constable Wagar targeted the Applicant for an improper purpose, that he was applying his discretion inenforcing this law improperly, nor is there evidence that the Applicant is a racialized individual. iii.

The Mechanism of the Approved Screening Device Test [56] In considering the specific features of the approved screening device relative to the reasonableness assessment, Karakatsanis J. inGoodwin, supra, identified two relevant factors at paras. 64-67: firstly, the degree of intrusiveness of the approved screening device teston a driver’s bodily integrity and privacy interests and, secondly, the reliability of the results. [57] As I have said, it is well-established throughout the jurisprudence that the provision of a breath sample is generally a minimallyintrusive search.

When referring to a breath sample into an approved instrument, the Supreme court stated in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 at para 111, “On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.” This is consistent with theapproach repeatedly taken by the Ontario Court of Appeal in more recent cases such as R. v.

Manchulenko, 2013 ONCA 543 ,[2013] 116 O.R. (3d) 721 at para. 100 where Watt J.A. referred to “the general rule with respect to the admissibility of breath samplesdue to their non-intrusiveness” and in R. v. Guenter, [2016] ONCA 572 at para. 98 where Brown J.A stated “the collection of the breathsamples amounted to no more than a minimal intrusion upon the appellant’s privacy, bodily integrity and human dignity: Grant, at para.111” and in R. v. Jennings, 2018 ONCA 260 , [2018] O.J.

No. 1460 (O.C.A.) where Miller J.A. found at para 32 that “it was anerror for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to havebeen minimal, favouring admission.” When considering the degree of the intrusiveness of a search comprised of a roadside approvedscreening device demand in Goodwin, supra, Karakatsanis J. found at para. 65 that a roadside approved screening device sample was“more intrusive than a demand for documents” and “a breath demand clearly amounts to what La Forest J. described as “the use of aperson’s body without his consent to obtain information about him” by which the state “invades an area of personal privacy essential tothe maintenance of his human dignity.” R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417 at pp.431-32.” Ultimately, she held,however, that “this minimally intrusive character supports the reasonableness of the ASD seizure.” [58] With respect to the second factor, that being the reliability of the test results, Dr. Mayers indicated at para. 9 of his Affidavit,“Since their first use [referring to the ASD] the ATC [Alcohol Test Committee] has established “Equipment Standards and Evaluationprocedures” to ensure that any device employed in Canada is reliable and accurate.

In addition, the ATC regularly publishes their“Recommended Best Practices for a Breath Alcohol Testing Program” to the “Evaluation Standards and Recommended OperationalProcedures.” These Standards and Procedures are regularly re-evaluated, updated as required and available on the Canadian Society ofForensic Science (CSFS) website.” In conclusion, Dr. Mayers states in his Affidavit at para.11, that “while no ASD is infallible they arescientifically reliable, widely deployed and well accepted in the courts for the purposes of detecting alcohol in the human body.

Noscientific issues with alcohol testing exist with Mandatory Alcohol Screening.” [59] While I appreciate that Karakatsanis J. expressed concern in Goodwin, supra, at para. 66 about the reliability issues related to theapproved screening device vis-a-vis mouth alcohol, there was no such evidence tendered in this trial regarding that aspect of thereliability of the ASD or regarding the potential for the presence of mouth-alcohol at the time of the Applicant’s test which would impacton the reliability of the result.

As such, I am satisfied based on the totality of the evidence that the approved screening device used wasreliable. iv. Availability of Judicial Oversight [60] The Applicant asserts that “the main factor that makes this legislation unreasonable” is that there is no availability for review oropportunity to challenge the validity of a demand, thereby rendering it clearly inconsistent with the Charter. [61] I do not agree that it is an unreviewable power of search.

If someone is charged with a criminal offence, after an investigationwhich included the registering of a fail from an ASD pursuant to a demand under s. 320.27(2), the individual has the remedy of a fullanswer and defence through a criminal trial where it can challenge the reason for and lawfulness of the stop, whether the officercomplied with the statutory requirements set out in s. 320.27(2) to make the demand and the manner in which the search and seizure wasultimately carried out, including the immediacy requirement. To this end, there is judicial oversight.

In addition, if an individual seeks tochallenge the propriety of a stop or a demand where no charges result, they can do so pursuant to the Police Services Act, as is availableregarding any other alleged police misconduct that does not result in a criminal charge. [62] The Applicant also argued that the lack of judicial oversight with respect to the consequences under s. 48 of the H.T.A. for anindividual who registers a reading in the WARN range (which is a licence suspension between 3-30 days depending on whether theyhave had prior such suspensions within the last 5 years) is unconstitutional.

The consequences that may flow from the results of an ASDtest under a separate piece of provincial legislation, such as the H.T.A. are not relevant to the reasonableness or constitutionality of s.320.27(2) of the Criminal Code. Rather, if the Applicant’s complaint is with respect to the sanctions imposed under the H.T.A., then itsremedy would lie in a constitutional challenge to the provisions of the H.T.A. C. Was the Search Itself Carried out in a Reasonable Manner?

[63] The overall reasonableness of the search must be assessed in light of the totality of the circumstances (R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 44), which includes an assessment of the conduct of the police in carrying out the search, the extentof the interference, and whether the search was minimally intrusive on the privacy interest at stake (R. v. Macdonald, 2014 SCC 3, [2014] 1 S.C.R. 37 at para. 47). [64] In this case, it is not disputed that Constable Wagar complied not only with the requirements set out in s. 320.27(2), but also thetest as set out above in Smith, supra.

Constable Wagar lawfully stopped the Applicant, who was operating a motor vehicle as a result ofconcerns regarding the Applicant’s licence plate; he had a screening device in his possession at the time and made a demand of theApplicant driver at the scene pursuant to s. 320.27(2); and quickly administered the screening test in short order at the scene. From thetime the demand was made until the arrest it was not more than 2 minutes.

There was no evidence of any conduct on the part of theofficer that he improperly stopped the Applicant, that he was delayed in the making of the demand or in administering the test, that theApplicant’s safety was put at risk as a result of the detention or the administering of the test, that the officer breached his privacy furtherthan was required in order to administer the test, or that the search was carried out in a manner that went beyond that which wasnecessary in order to obtain a suitable breath sample. For these reasons, I conclude that the search and seizure was carried out in areasonable manner. D.

Conclusion on

Section 8 [65] As set out in Hunter, supra, and in R. v. Rodgers, 2006 SCC 15 , [2006] 1 S.C.R. 554 at para. 27, the assessment ofreasonableness requires a balancing of the relevant competing interests regarding the importance of the state objective and the degree ofimpact on the individual’s privacy interest. [66] I have concluded based on a balancing of all of the factors I have referred to above, that the search and seizure that was carriedout pursuant to s. 320.27(2) was reasonable in the circumstances.

The personal and informational privacy interests of an individual whois operating a motor vehicle in their blood alcohol concentration as measured by an approved screening device administered pursuant tothe statutory requirements of s. 320.27(2) is, at its highest, a minimal and residual privacy interest. The pressing and substantialobjectives of the law aimed at increasing the rate and reliability of detection and increasing deterrence are met by eliminating suspicion-based testing, which has proven to be unreliable in many circumstances, with a screening method that is scientifically-accepted andreliable.

While drivers who have not consumed any alcohol may now be required to provide a sample of their breath into an ASD, thelaw already permits the police to stop and detain such drivers and to take steps to investigate their sobriety. Although prior screeningmeasures did not involve a search and seizure unless an officer had a reasonable suspicion that the driver had alcohol in their body, theimpact of the search and seizure pursuant to s. 320.27(2) is minimally intrusive on a person’s privacy interests and bodily integrity.

Thestatutory requirements when a demand is made are set out in s. 320.27(2) and are designed to ensure that it results only in a very briefroadside detention of an individual who is voluntarily engaged in the highly regulated and dangerous activity of driving a motor vehicle,which in this case lasted not more than 2 minutes.

Section 320.27(2) contains appropriate restrictions on when and in whichcircumstances the police may conduct this screening (lawful stop, present operation of a motor vehicle, and the approved screeningdevice in the officer’s possession), as well as, the limited use that can be made of the results (only as a screening measure and not toestablish guilt). If charges are laid against an individual, there is judicial oversight through a trial where the defence can challenge thelawfulness of the stop, lawfulness of the demand and the search itself.

While there is the potential for the disproportionate application ofthis law against racialized and other marginalized populations, this can also be said of the former s. 254(2). In many ways s. 320.27(2)serves to increase overall fairness by removing the subjectivity involved in the prior suspicion-based testing. Overall, the law isreasonable having consideration of the totality of the circumstances and the context.

In this particular case, the search was authorized bythe law, the law itself is reasonable and the search was carried out reasonably and in full compliance with the statutory requirements of s.320.27(2) and met the test in Smith, supra. I am satisfied that s. 320.27(2) strikes an appropriate balance between the pressing and substantial interest of the state in detecting anddeterring persons from drinking and driving against those of the individual driver and does not infringe s. 8 of the Charter. 8.

SECTION 1 ANALYSIS [67] If I am wrong in that conclusion, I have considered whether s. 320.27(2) would be saved by s. 1 of the Charter as a reasonablelimit that is demonstrably justified in a free and democratic society as set in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103 atparas. 66-70. The Crown has the burden of proving on a balance of probabilities, that the objective of the law is pressing and substantialin a free and democratic society, and secondly, that the means chosen are reasonable and demonstrably justified. In considering thesecond part of the test, referred to as the proportionality test, the Crown must demonstrate that:

(1) The measures adopted are carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based onirrational considerations. In short, they must be rationally connected to the objective.

(2) The means, even if rationally connected to the objective, should impair as little as possible, the right or freedom in question.

(3) Further, there must be proportionality between the effects of the measures which are responsible for limiting the Charter right orfreedom, and the objective which has been identified as of “sufficient importance.” The more severe the deleterious effects of a measure,the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. A.

Is s. 320.27(2) pursuing a Pressing and Substantial Objective? [68] I have already thoroughly set out the reasons I have found that the objectives of s. 320.27(2) are pressing and substantial and findno need to expand on or repeat them. I rely on those reasons in coming to the same conclusion under the first branch of the Oakes testthat Parliament’s objective in enacting s. 320.27(2) are pressing and substantial. B. Is the Search and Seizure set out in s. 320.27(2) Rationally Connected to the Objective? [69] The Applicant concedes that s. 320.27(2) is rationally connected to its objectives. I agree.

[ 70 ] Suspicion-based testing under the former s. 254(2) was inadequate to effectively and consistently detect and deter drivers with an elevated blood alcohol concentration, as a result of an officers’ general inability to reliably observe indicia that a driver had alcohol in their body during routine traffic stops or in circumstances where the driver does not admit to alcohol consumption and is not exhibiting indicia of alcohol consumption or impairment, notwithstanding that they do have an elevated blood alcohol concentration or are impaired.

Mandatory alcohol screening by use of an approved screening device is a scientifically reliable screening measure that will increase detection by officers in circumstances where they would otherwise be relying on their subjective and potentially erroneous observations and will enhance deterrence [ 71 ] For these reasons, mandatory alcohol screening as set out in s. 320.27(2) is rationally connected to the objectives of the law. C.

Does s. 320.27(2) Impair the Right or Freedom as Little as Possible? [ 72 ] In considering this branch of the test, I am mindful that as McLachlin C.J. and Lebel J. stated in Mounted Police Association of Ontario v.

Canada (Attorney General), [ 2015] S.C.R. 1 at para. 149, that “The government is not required to pursue the least drastic means of obtaining its objective, but it must adopt a measure that falls within a range of reasonable alternatives.” [ 73 ] The Applicant argued that statistics, such as the fact that 79% of cases (under the former s. 254(2) ) resulted in findings of guilt and that drinking and driving was on the decline in Canada prior to the enactment of s. 320.27(2) (Ashley Maxwell, “Adult criminal court statistics in Canada, 2014/2015” Juristat , catalogue no. 85-002X, Canadian Centre for Justice Statistics, Statistics Canada (21 February 2017) at pp. 5-7) support a finding that s. 254(2) resulted in the regular detection and successful prosecutions of impaired driving.

These statistics demonstrate that those who were detected and arrested, were on a balance, successfully prosecuted, however, they say nothing about the overall rate of detection and say very little about the subject of deterrence. I accept the evidence presented by Dr.

Beirness that there are considerable problems associated with suspicion-based testing in detecting drivers who are over the legal limit and are impaired and that drinking and driving remains a significant problem in Canada too frequently resulting in significant death, personal injury and economic loss. [ 74 ] While the Applicant submitted that there are other less intrusive options for detecting and deterring drinking and driving, such as increased law enforcement and more publicity regarding the dangers and consequences of drinking and driving, this Court was not provided with evidence from which it could infer these methods would increase detection or deterrence any further than they already have.

For argument’s sake, even if I accepted that increased public awareness campaigns increased deterrence, it is difficult to imagine how increased enforcement action using an unreliable, suspicion-based testing model could overcome the problems associated with suspicion-based testing, such as an officers’ general inability to reliably detect the odour of alcohol on a driver’s breath, or observe indicia of intoxication and impairment in individuals who have developed a high alcohol tolerance or in circumstances where an individual is able to intentionally or unintentionally mask indicia of alcohol consumption or briefly suspend indicia of consumption/impairment and thereby successfully evade detection. [ 75 ] In my view, the already existing power of police to stop drivers to check on their sobriety, the elimination of the time required for an officer to form a reasonable suspicion, the minimal intrusiveness of an approved screening device test on a subject’s bodily integrity and privacy, along with the statutory requirements that an officer have possession of an approved screening device when they make the demand, the immediacy requirement in the demand and the efficiency of the test itself, which can be administered and produce a result in as little as 5 seconds or not more than 2 minutes, all favour a conclusion that s. 320.27(2) is minimally impairing to the driver’s freedom and rights.

D. Is there Proportionality between the Deleterious and Salutary Effect of the Law? [ 76 ] The salutary effects of s. 320.27(2) are clear, as it will increase detection and deterrence of drinking and driving and thereby decrease the loss of life, injury, property damage and overall social cost that it too frequently still causes. [ 77 ] The deleterious effects of the legislation is that all drivers can now be required to provide a breath sample based on nothing more than the fact they are driving a motor vehicle.

This will result in persons who have not consumed any alcohol now being required to provide a sample of their breath into a roadside approved screening device.

Further, the application of s. 320.27(2) may disproportionately impact on racialized persons, based on the fact that racialized persons are already stopped more frequently by police officers than others, however, the elimination of the need for an officer to make subjective observations of a driver to formulate a reasonable suspicion of alcohol consumption may also enhance overall fairness. [ 78 ] Providing a sample of one’s breath into an ASD is a minimally intrusive breath test at the roadside which is used for screening purposes only.

The test itself can be administered quickly and s. 320.27(2) is designed to ensure that the officer has a device in his possession at the time of the demand, serving to reduce the length of any such detention. The test result reveals nothing about the individual other than their blood alcohol concentration in the context of the highly regulated and dangerous activity of operating a motor vehicle. It takes place in the context of a lawful stop and in circumstances where the officer is already justified in detaining an individual for the purposes of investigating their sobriety.

In my view, the minimal impact on an individuals’ s. 8 Charter rights are proportionate to the pressing and substantial objective of increasing detection and deterrence of persons who choose to drink and drive given the grave and tragic results that too often occur. As such, s. 320.27(2) is reasonable and demonstrably justified in a free and democratic society. 9. CONCLUSION AND ORDER [ 79 ] In my view, s. 320.27(2) is constitutional and is applicable to the Applicant in the circumstances of his stop by Constable Wagar on December 22, 2018.

The Applicant’s Notice of Constitutional Question is dismissed. [ 80 ] As such, based on the evidence as set out in the Agreed Statement of Facts filed on November 13, 2019, I find the Applicant is guilty of the charge as laid.

Released: December 18, 2020 Justice Leszczynski